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05/11/78 WILLIAMS COLLEGE v. ATTORNEY GENERAL

May 11, 1978

WILLIAMS COLLEGE
v.
ATTORNEY GENERAL



Berkshire. Civil action commenced in the Probate Court for the county of Berkshire on October 19, 1976. The case was reported to the Appeals Court by Nuciforo, J. The Supreme Judicial Court granted a request for direct review.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Probate Court, Jurisdiction. Jurisdiction, Probate Court. Venue. Notice. Institutional Funds.

The opinion of the court was delivered by: Liacos

Under its general equity jurisdiction, a Probate Court had authority to grant relief in an action pursuant to G. L. c. 180A, § 9, for the release of investment restrictions on institutional funds. [222-223]

The Probate Court for Berkshire County was an appropriate forum for an action brought under G. L. c. 180A, § 9, by a charitable corporation having its usual place of business in Berkshire County seeking the release of restrictions on both testamentary and inter vivos gift instruments made outside the county. [223-224]

An equitable proceeding under G. L. c. 180A, § 9, seeking the release of investment restrictions on charitable funds is a case distinct from the probate of the wills of the donors of these funds, so that probate of the wills in one county does not preclude prosecution of the equitable proceeding in another county. [224-225]

Where all the donors of funds as to which relief was sought under G. L. c. 180A, § 9, were dead, it was sufficient to notify only the Attorney General of the action. [225-226]

Williams College (college), a Massachusetts charitable corporation with its usual place of business in Williamstown, Berkshire County, brought an equity proceeding pursuant to G. L. c. 180A, § 9, seeking the release of restrictions of separate investments imposed on certain inter vivos and testamentary gifts made to the college. *fn1 The donors of these gifts are no longer living. Most of the college's endowment funds are invested as a single consolidated fund. Each participating fund is allocated a distinct share in the consolidated fund. However, funds derived from the gifts and bequests in issue are invested separately due to the separate investment requirements of the gift instruments. The college alleges that continued separate investment of such funds is obsolete, inappropriate, and impracticable.

The Attorney General, the sole defendant and the only person receiving notice of this action, filed an assent to the entry of judgment for the college. At an ex parte hearing on the action, the Judge raised jurisdictional issues to which the college responded in oral argument and subsequently in a written memorandum of law. The Judge declined to rule on the question whether relief from the restrictions of separate investment should be granted. Believing that certain jurisdictional and procedural questions must be decided first, he reserved and reported these questions to the Appeals Court. G. L. c. 215, § 13. *fn2 We granted the college's application for direct appellate review. The college filed a brief, with which the Attorney General is in agreement.

Question Relating to Jurisdiction over Cases Under G. L. c. 180A, § 9.

Question 1. This question asks whether the Probate Court is "a 'court of competent jurisdiction' to resolve questions of the management of a trust" arising under G. L. c. 180A, § 9, the Uniform Management of Institutional Funds Law.

At the outset we note that, although the Judge has characterized the funds in issue as trust funds, our answer to this question would be no different if the college is considered to have full ownership of these funds, subject to the restrictions imposed on it by the governing gift instrument. *fn3 See c. 180A, § 1 (6). We answer this question in the affirmative. A Probate Court has authority to grant relief under c. 180A, § 9.

Section 9 of c. 180A, inserted by St. 1975, c. 886, provides in relevant part that, "ith the written consent of the donor, the governing board [of an educational institution] may release, in whole or in part, a restriction imposed by the applicable gift instrument on the use or investment of an institutional fund. If written consent of the donor cannot be obtained by reason of his death, . . . the governing board may apply in the ...


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